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APD 93370
June 15, 1993

APD 93370

June 15, 1993

At a contested case hearing held in (city), Texas, on April 19, 1993, the hearing officer, (hearing officer), giving presumptive weight to the report of the designated doctor selected by the Texas Workers' Compensation Commission (Commission), determined that the appellant (claimant) reached maximum medical improvement (MMI) on October 28, 1992, with a zero percent whole body impairment rating for his undisputed left foot injury. In his request for review, the claimant generally disagrees with the adverse decision below and asserts that the designated doctor was a urologist who just "yanked on" his foot, that the Commission should have selected a designated doctor familiar with foot injuries, and that he still needs foot surgery which has not been approved. No response was filed by the respondent (carrier).


Finding the evidence sufficient to support the decision below, we affirm.

Claimant, the sole witness, testified he had been employed for 34 years as a bread truck driver-salesman when on (date of injury), a fully loaded bread rack he was pulling, which weighed approximately 400 pounds, rolled onto the top of his foot. He has not worked since the accident because of his pain. On February 5, 1992, he sought treatment from D.P.M. (Dr. S). Dr. S's records indicated that claimant was diagnosed on February 5th with torn ligaments in his left foot and ankle. After the swelling was reduced, claimant's left foot was casted until March 4th. Claimant was also given medication and put on a course of physical therapy (PT). He saw Dr. S on one or more occasions monthly until November 1992. On June 18th, Dr S. reported that claimant's left heel was hurting and on August 27th reported that claimant was developing tarsal tunnel syndrome.

Dr. S's records reflected that claimant was seen in September by (Dr. MRH), for a second opinion and that Dr. MRH gave claimant medication and a styrofoam shoe insert. Dr. S's notes also stated that if claimant did not improve, surgery (unspecified) would be scheduled. According to claimant, Dr. S wanted to perform a "metatarsal release." Claimant testified that the carrier required that he be seen by Dr. MRH, that Dr. MRH took x-rays and told him he "doesn't do surgery like that," and that Dr. MRH's attitude was that claimant should get back to work and "just tough it out." According to Dr. MRH's November 17, 1992, Report of Medical Evaluation (TWCC-69)--which incorporated by reference four narrative reports, only three of which were in evidence--claimant was seen on October 28, 1992, and Dr. MRH determined that claimant had reached MMI on that date with a zero percent whole body impairment rating. Dr. MRH's narrative reports indicated he saw claimant on October 5th, 16th, and 28th, that claimant had been off work for some nine months with a sore foot, that Dr. MRH could find no serious pathology except for some heel spurs, that Dr. MRH felt surgery was not indicated, that Dr. MRH felt claimant was probably suffering from a plantar fasciitis, that while he felt the accident aggravated a heel spur and that claimant was "disabled due to the heel spur itself," he did not think claimant "sustained any permanent impairment as a result of the accident on 2/3/92," and that claimant should return to work as soon as possible.

Claimant said he later was seen on two occasions by. (Dr. MWH), the designated doctor. On the first visit, he said Dr. MWH "yanked on" his foot and said he did not yet have claimant's records. On the second visit, according to claimant, Dr. MWH said he still did not have claimant's records and when claimant told him not to jerk on his foot like he did on the first visit, Dr MWH responded that he did not have to do that again. Claimant also said he saw an indication on a document or letterhead that Dr. MWH was a urologist. Claimant's testimony implied that Dr. MWH, being a urologist, was not qualified to be the designated doctor for a foot injury and that he did not perform an adequate examination of claimant. Dr.MWH's TWCC-69, dated March 2, 1993, reflected that claimant was seen on February 10, 1993, that claimant had mild pain upon palpation of his left heel but that his range of motion was intact, that the nerve conduction testing was normal, that the October 2, 1992, x-ray shows a heel spur, and that claimant reached MMI on October 28, 1992, with a zero percent whole body impairment rating based on the American Medical Association Guides to the Evaluation of Permanent Impairment, third edition.

The Texas Workers' Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-4.25(b) and 8308-4.26(g), provides that the report of the designated doctor selected by the Commission is to be accorded presumptive weight concerning a disputed MMI date and impairment rating unless the great weight of the other medical evidence is to the contrary. We agree with the hearing officer's determinations that claimant reached MMI on October 28, 1992, with a zero percent whole body impairment rating. Not only were such certified to by the designated doctor but by the carrier's doctor as well. Dr. S's records of claimant's visits after seeing Dr. MWH may indicate that Dr. S was still contemplating some type of surgery if claimant's condition did not improve. However, they do not comment on the MMI date and impairment rating determined by the designated doctor.

Claimant attached to his appeal a May 4, 1993, letter from Dr. S which stated that claimant's injury caused him to develop a heel spur and plantar fasciitis and that Dr. S contacted the carrier on November 4, 1992, seeking approval for surgery. Dr. S's letter also stated as follows: "In my opinion [claimant] cannot reach a level of MMI were (sic) he could return to work. He will not reach a higher level of MMI without the surgery. I have not released [claimant] to full duty but did release him to light duty."

We have previously observed that our review is limited to the record developed at the hearing (Article 8308-6.42(a)) and that we will not consider evidence first offered on appeal if it could have been timely obtained for presentation at the hearing with the exercise of due diligence, if it is cumulative of evidence already offered, or if it would probably not produce a different result upon a remand and new hearing. Texas Workers' Compensation Commission Appeal No. 92444, decided October 5, 1992, and Texas Workers' Compensation Commission Appeal No. 92459, decided October 12, 1992.

Claimant offered no explanation for his not earlier obtaining the letter from Dr. S and offering it at the April 19th hearing even though he had, presumably, the TWCC-69 of Dr. MRH since November 1992, and the designated doctor's TWCC-69 since early March 1993.

However, even were we to consider the content of Dr. S's post-hearing letter, we would not find that it constitutes the great weight of other medical evidence against the designated doctor's report. We have often stated that a "great weight" determination amounts to more than a mere balancing or preponderance of the medical evidence. See e.g. Texas Workers' Compensation Commission Appeal No. 92412, decided September 28, 1992. It is apparent from Dr. S's records of claimant's visits in late 1992 and early 1993 that claimant was still complaining of pain and Dr. S's letter seems to reflect his opinion that claimant's discomfort could be relieved with surgery. However, there was no indication in the record that surgery was ever scheduled. Moreover, Dr. MRH did not feel claimant was a good surgical candidate. The designated doctor, while not mentioning surgery, felt claimant had "reached a plateau" and certified he had reached MMI. Claimant testified the designated doctor delayed his report pending his receipt of claimant's medical records. Presumably, therefore, the designated doctor was aware of the differing opinions of Dr. S and Dr. MRH on claimant's candidacy for surgery. That there may exist a difference in medical opinion as to whether claimant should have surgery does not in our view necessarily mean that claimant did not reach MMI on October 28, 1992. Compare Texas Workers' Compensation Commission Appeal No. 93293, decided June 1, 1993, Texas Workers' Compensation Commission Appeal No. 93311, decided June 7, 1993, and Texas Workers' Compensation Commission Appeal No. 93336, decided June 16, 1993.

We have previously stated that MMI does not require that the injured employee be free of pain or otherwise restored to his pre-injury medical condition. See e.g., Texas Workers' Compensation Commission Appeal No. 92670, decided February 1, 1993. Our language in Texas Workers' Compensation Commission Appeal No. 93007, decided February 18, 1993, bears repeating here:

While MMI may appear to mean complete recovery to the lay person, that is not what it means for purposes of workers' compensation benefits. That term means, under Article 8308-1.03(32)(A) of the 1989 Act, the point at which further material recovery or lasting improvement can no longer be reasonably anticipated, according to reasonable medical probability. When the doctor finds MMI and assess an impairment, he or she agrees, in effect, that while the injured worker may continue to have consequences, and quite possibly pain, from the injury, the doctor has determined, based upon medical judgment, there will likely be no further material recovery from the injury. Thus, although claimant is unfortunately in pain, this fact alone would not rule out MMI.

We would also note that claimant is entitled to all reasonable medical care as and when needed. Article 8308-4.61(a).

The hearing officer is the sole judge of the weight and credibility of the evidence. Article 8308-6.34(e). We do not substitute our judgment for that of the hearing officer where, as here, the challenged findings are supported by sufficient evidence. Texas Employers Insurance Association v. Alcantara, 764 S.W.2d 865 (Tex. App.-Texarkana 1989, no writ). The challenged findings and conclusions of the hearing officer are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 751 S.W.2d 629 (Tex. 1986).

The hearing officer's decision is affirmed.

Philip F. O'Neill
Appeals Judge


Joe Sebesta
Appeals Judge

Lynda H. Nesenholtz
Appeals Judge